Court thwarts Sierra Club's hazardous waste challenge

Both the company and state regulators have repeatedly called the site safe.

This image provided by the U.S. Department of Energy (DOE) shows the first transuranic waste shipment arriving Wednesday April 2, 2014, at the Waste Control Specialists facility in Andrews, Texas. This first shipments arrived at the commercial nuclear waste dump in Andrews County Wednesday, more than a month after the nation's only permanent repository for the waste in southeastern New Mexico was closed by back-to-back accidents.

A state appeals court has thwarted a challenge to a hazardous waste disposal site in West Texas — a ruling that signals growing difficulties for those trying to scrutinize the decisions of Texas environmental regulators.

Depending on whom you ask, such a trend would either rightly save companies time and money or unjustly bar citizens from fully sharing their environmental concerns.

The site, a 36-acre facility in Andrews County operated by Waste Control Specialists — a company formerly owned by the late Dallas billionaire Harold Simmons — is the final resting place for hazardous waste and slightly radioactive items from shuttered nuclear reactors and hospitals, among other places.

Both the company and state regulators have repeatedly called the site safe. But environmental groups have closely scrutinized the site as it has expanded the scale of waste it accepts, raising concerns about the effects on groundwater and other resources.

The Sierra Club has long argued that state regulators never gave the organization the chance to voice opposition to Waste Control Specialists’ permits through a contested-case hearing — a drawn-out process resembling a trial in which companies and their critics present evidence and testimony in front of an administrative law judge in the hopes of swaying regulators’ opinions.

Earlier this month, Texas’ 3rd Court of Appeals upheld a lower court’s ruling that the Texas Commission on Environmental Quality properly denied the group a hearing because none of its members met the threshold of being a “person affected.”

At issue in that Sierra Club case was one of several permits the TCEQ has granted Waste Control Specialists. The permit enabled the company to dispose of high-purity uranium metal that originated at a long-closed U.S. Department of Energy Facility that is now a “Superfund” site.

The Sierra Club said the waste site could negatively affect two of the group’s members who lived just across the border in Eunice, N.M., putting their air and water quality at risk. That included Rose Gardner, who operates a feed store just 4 miles from the waste site.

But the three-judge panel said the TCEQ — whose analysis showed the disposal site would have minimal impacts — had the authority to rule that those members were not “affected.”

In making that determination, the court cited two Texas Supreme Court decisions handed down last year — TCEQ v. City of Waco and TCEQ v. Bosque River Coalition. Both involved challenges to feedlots’ wastewater discharge permits.

Cyrus Reed, conservation director for the Lone Star Chapter of the Sierra Club, said he worried the appellate court’s recent ruling would have implications that extend beyond Andrews County, giving regulators more wiggle room to deny hearings they might consider burdensome.

“Our concern is that this ruling could be applied broadly and that it would make it very difficult for folks to be granted the right to a contested-case hearing,” he said. “It could also eliminate the right of all Texans to present evidence and challenge the decisions of a state agency.”

In an emailed statement, the TCEQ said it was “very pleased” with the court’s decision and that the agency takes seriously “its obligations to uphold the law — as was done in this case.”

Texas is one of just a few states that allow the public to request contested-case hearings, said Jeff Civins, an Austin-based attorney who has represented companies in such hearings. In most states, citizens are invited only to submit comments to regulators ahead of a vote.

Civins said it makes sense that regulators determine who should get a hearing, because they are the ones ultimately ruling on the permits and because the process eats up a lot of resources. The process can take up to a year and cost up to $1 million a project, he said.

Jim Bradbury, an environmental lawyer who has represented clients on both sides of such disputes, said the Sierra Club ruling confirms the TCEQ’s discretion to determine who gets a hearing, but doesn’t fully erode the process. Parties who live adjacent to or directly downstream from companies seeking environmental permits will likely still draw hearings, he said.

Over the years, the hearing process has been a useful tool for concerned stakeholders, Bradbury said, but it has also been abused by groups trying to advance policy or business goals by slowing down the permitting process.

“It’s a bit of a mess,” he said. “This process is used by all sides to game the system.”

Citing such criticism, some state lawmakers have pitched legislation trying to change the system. Last session, for instance, state Sen. Troy Fraser, R-Horseshoe Bay, wrote a bill that would have ditched the contested hearing process. That legislation failed, but Bradbury and others expect it to crop up again next session.

Meanwhile, the Sierra Club has another challenge to Waste Control Specialists pending in the same appeals court. That one concerns a license for disposal of low-level radioactive waste.

(Disclosure: The Harold Simmons Foundation is a major donor to The Texas Tribune.)

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That they cite the TCEQ as a regulator. TCEQ wouldn't even allow testimony and reports from their own scientists and engineers to get into the final report before the legislature and commission. These folks felt so strongly about it they stepped down in protest.

The TCEQ has really just become another taxing body for perry. They now charge yacht owners who have a head on their boat an annual fee. Fortunately Neugerbauer does not have to pay that fee because he keeps his boat in D. C.

On his comment about Cruz and his money, mrstvdvs1 misused aloud for allowed. Oh well. As I mentioned, his knowledge of birds is just about as bad as his knowledge of politicians.

The real problem is that he believes, as do other GOTP members, that perry's government has been doing its job in regulating hazardous waste while in effect, it has turned its back on the situation so that the people involved can do what they want for a fee.

"Spelling, grammar and punctuation doesn't[sic] matter" They DO matter for understanding and accurate expression of your opinion.

As for the SUBJECT under discussion, "Both the company and state regulators have repeatedly called the site safe." BUT......who runs the company and state regulators? Who OWNS SHARES in WSC? You guessed it.....Perry, Hance, Simmons (deceased), Bush, et al.

If you remember, when GWB was governor, Hance was lobbyist for Simmons. I believe that was when permission was given for the hazardous waste dump to be placed where it is -- over a part of the Ogallala aquifer (yes, it's STILL there!) and within contamination distance of rich farmland. SMART move, Texas leaders! (sarcasm)

Don't forget Hance as a WCS lobbyist was caught trying to bribe a Congressman to get legislation passed for WCS.

"
John Birdwell and former congressman Kent Hance, were exposed trying to get an outspoken republican opponent of their radioactive waste bill to change his mind by promising $60,000 in campaign contributions in the next elections. Reps Robert Talton (R-Pasadena) and Ray Allen (R-Grand Prarie) reported the incident to the executive assistant to House Speaker Pete Laney, and the District Attorneys office. Allen stated that he had been approached by Birdwell who said of Talton,"why, they would put $60,000 in his campaign in a heartbeat if he would back off." Allen stated that "it certainly sounded like a bribe using campaign contributions... There was clearly a linkage between the campaign contributions and Robert dropping his opposition." Tarlton mentioned that Hance had also approached him concerning a possible opening in his law firm (Hance, Scarborough, Woodward, and Weisbart) becoming available if he dropped opposition to the bill. "He implied that he needed another lawyer in Houston," Talton said. "And I said I made over $1 million last year, and I don't need this."

And then there is this little gem.

"A detailed geological survey was conducted of the site in 1993 as part of it's application with the TCEQ (then called the TNRCC). This study is included with the rest of WCS's file at the TDH. It not only proves the presence of the aquifers at the WCS, but also the 100-year floodplain. The report WCS submitted as an site assessment makes references to this report, yet unscientifically attempts to debunk its most important findings by scratching out the word Ogallala and replacing it with Antlers Sandstone. They gave no evidence to support this claim, and the State's Bureau of Radiation Control (TxBRC) produced no documented review of the submitted site geology. Later, geological suitability of WCS was criticized by the University of Texas Bureau of Economic Geology for not providing sufficient evidence of its claims for suitability as a radioactive waste dump. In response WCS changed their story, and developed a second geological survey which showed that the Ogallala was partially there, yet maintained the presence of the Antler formation. "

know about you guys but I sure as hell don't want that waste in our backyard!!! We're already running out of water and this crap will leach into whatever water supply we have left!!! Why don't they find a dumping site closer to where it comes from?

I'm not sure there is such a thing as a "safe" dump site for those materials. What constitutes "low level" waste? Long term exposure to it will still cause serious problems. What constitutes a "safe" level of radioactivity? These are questions with ambiguous answers.

These substances, depending on exactly what they are, have a fairly long "half-life" ---that is HALF their radioactivity will be gone in "X" number of years. But it's an "asymptotic" curve, from there. HALF of whatever is left takes just as long to dissipate, and then HALF of whatever is left of that takes just as long, and so on. You NEVER get to zero.

We just don't have the technology to contain this sort of waste. Whatever we use will age, deteriorate, rust out, whatever, long before the radiation is dissipated.

I hate to say this, as much in favor of the limitless potential of nuclear energy as I once was, but we may not EVER be able to sufficiently tame the energy of nuclear fission and its by products.

It's like drawing straws ---the state with the short straw gets to ride the tiger. Whose land is sacrificed? And what about the animals that reside there? I was brought up to believe we must be good stewards of the land, and this isn't getting the job done.

Maybe we need to abandon nuclear energy, cut our losses, and move on. I surely would like to see a crash program to develop Tidal Energy. It's just as limitless as nuclear, but without the down side.

ALWAYS matter. Someone who knows how to use the English language properly will be listened to, and paid attention to, far more often that someone who cannot tell a possessive pronoun from a contraction.

I never thought I would agree with you, MAS, but I do think we should NOT pursue nuclear energy and instead concentrate on other forms of sustainable/renewable energy. I also think Yucca Mountain was the wisest choice for nuclear wastes and billions of our tax dollars have already gone into getting it ready. At least Yucca Mountain is not OVER a vital aquifer and not near important farmland.

Michael Brune, the Director of the Sierra Club said the following in regard to civil disobedience.

"If you could do it nonstop, it would take you six days to walk from Henry David Thoreau's Walden Pond to President Barack Obama's White House. For the Sierra Club, that journey has taken much longer. For 120 years, we have remained committed to using every "lawful means" to achieve our objectives. Now, for the first time in our history, we are prepared to go further.

Next month, the Sierra Club will officially participate in an act of peaceful civil resistance. We'll be following in the hallowed footsteps of Thoreau, who first articulated the principles of civil disobedience 44 years before John Muir founded the Sierra Club.

Some of you might wonder what took us so long. Others might wonder whether John Muir is sitting up in his grave. In fact, John Muir had both a deep appreciation for Thoreau and a powerful sense of right and wrong. And it's the issue of right versus wrong that has brought the Sierra Club to this unprecedented decision."

That was a message in January of 2013 and is essentially the face of the Sierra Club. After a long diatribe giving them license or justification for their actions he quotes Martin Luther King near the end, "The arc of the moral universe is long but it bends toward justice."

Moral universe? That's very interesting since assigning morality to the universe is inconsistent with an a-moral universe. According to evolutionists, it arose from time and chance. Evolution (time and chance) do not exhibit any sort of morality. They are cruel taskmasters respecting no one.

It should be clear the Sierra Club will conveniently admit to a "morality" when it suits their agenda and will use it as justification for their actions.

At this point, I'm not even certain that Yucca Mountain is a "safe" site for these materials. YES, we need to put the waste we have already generated there ---simply because it has to go SOMEWHERE.

However, we must STOP producing the waste completely, and as you say, concentrate on other forms of energy.

Not every technology which initially shows great promise turns out to be the panacea it was at first thought to be. This is definitely the case with nuclear energy. We need to cut our losses and move on. Tidal energy is my current favorite, but there are also solar, wind, geothermal, biological sources that can work at landfills, and many others.

If my pants leg is on fire and I pour my iced tea on it as fast as I can, I'm not being "moral", but pragmatic. I do not want to wait until all my clothing is aflame.

That is precisely the current situation vis-a-vis nuclear energy, as I see it. We can admit that we've made a blunder, STOP doing what we're doing, and clean up the mess as best we can. We don't have to continue with this technology until we poison everything around us.

As occasionally happens, we tend to agree with each other on most of the points here. My ONLY concern with tidal generated power is that climate change (whether you agree with it or not) will change the ocean elevation and could possibly make equipment installed either ineffective or inoperable. I realize this may be a long term problem, but I am afraid that the tidal power designs take several years to develop. That does not mean we should not try and develop that power.

In the mean time, we can use other methods to lessen are need for fossil fuels and nuclear power. The first that everybody (Except top cat) can do is go to LED or CFL bulbs. These bulbs use 10 to 20 percent of the power that old incandescent bulbs use. The next thing we can do is go to solar or wind power. I chose to go to solar power several years ago and cut my monthly electricity use from $650.00 per month to $80.00 a month las year and this year I should be around $50.00 a month. That includes the electricity to charge my plug-in Prius which gives me an average of 56 miles to the gallon.

If it sounds like I am a green nut, the answer is YES when the green is the color of the money in my wallet. It also allows people who are foolishly using 100 year old light bulb technology to have more electricity to waste.

The bottom line is that no matter what you do, everybody needs to give serious thought to the efficient use of resources and make changes accordingly.

I'm not advocating irresponsibility by encouraging a dirty energy source (i.e. nuclear, coal, etc.) but I do not subscribe to the hyperventilating scientists who are calling for an immediate cessation of ANY dirty energy source. I like being warm in the winter and cool into summer.

Although the Liberals hate the man, T. Boone Pickens had a great suggestion a few years back. You may remember he suggested using our abundant supply of natural gas while other cleaner sources were developed. That suggestion has fallen on deaf ears.

So what do we do? Or said another way, if the world was to immediately stop burning fossil fuels, would we see a drastic enough change to halt climate change? No one seems to be willing to say so.

add that you will always find the folks who live west of I35 are treated rather badly by the state politicians. No way that waste would ever be stored on the east side of the highway. That is why west Texas needs to start looking at electing different types of reps to serve us.

Fission vs fusion? we need to spend a lot of money to get to fusion. We need to spend a lot more to develop super-conductivity. Doesn't matter how we produce electricity we waste a lot of it during transmission.

Most of our technology is based around turn of the century, Westinghouse era knowledge. We need to move forward and develop safer ways to produce power, but politically we have a very small voice out here. Our recent water woes should be evidence of that.

Yes, Pickens was right about natural gas. If one cannot immediately move the whole distance to his goal, taking a single step is indeed better than standing still.

I'm not sure enough about the current fossil fuel-linked climate change theories to comment, either for or against.

I am fairly convinced that nuclear energy from Uranium or Plutonium is a serious mistake. I have daughters, granddaughters, and now a great-grandchild, who will need the land we live on after I'm gone. I'd hate to think of leaving them a radioactive cinder where beautiful Texas used to be.

Thomas, please elaborate. Who is advocating for IMMEDIATE cessation? Not the Sierra Club. Please show me where they advocate for IMMEDIATE CESSATION.

Regarding Sierra's problem with WCS, this is about safety. And I think MAS really summed it up nicely with the "burning pant leg" analogy.

Thomas, you are the only one hyperventilating.

Bornler has made some good observations about our old Reactor Technology. There is much safer, more modern technology. And we sure need to fix our retro energy grid. It waste so much energy just in transmission.

Having a broader energy portfolio is the only way we are going to meet our energy needs and mitigate the damage we have already done. Renewable scalable energy is increasingly easier to manage and store. I have laid out some links from NASA on the subject before. There is a lot of new technology coming out that is viable.

I won't bother reading your comment back to you where you do indeed state that scientists are calling for the "immediate cessation" of fossil fuels.

Your comment is completely erroneous. You need to understand when it comes to green and clean technology, many progressives have been working with Pickens for years. Not just Pickens, but others as well. You really do not know what you are saying and you really show how little you know about any of this. By the way, there are many folks in the green and clean business that are conservative. They just don't feel obligated to buy into ignorance on the topic.

It looks like today MAS may have changed your view on a few things because a couple a weeks ago you were quite willing to leave all this up to your GOD and mocked the science piece from Texas Tech and the U.N. / IPCC. In fact, that has been your general attitude.

When it comes to energy producers and new technology there are many folks working together. It isn't always black and white like you paint it all the time.

You accuse me of saying the "Sierra Club" is calling for the immediate cessation of the burning of fossil fuels and now you're agreeing I said "hyperventilating scientists". You are the one backpedaling. You like twisting mine and others words. Nice.

I am still willing to leave things up to "my God" whether you like it or not. I know you hate it but there are those who believe in something larger than themselves. You, however,…narcissistic fits you well.

As for your comment on the front page, others can decide for themselves. It certainly belies your previous commentary on emissions, climate change, and, to some degree, your Biblical stance on creationism.

You say I pester you. I see your generall attitude as an impediment to our process, but I'm glad MAS was able to reach you. MAS has some good ideas.

I don't think anyone here is actually motivated by the desire to feel "superior" to the others. Let's not even go there.

Friend Thomas, I am so Conservative that I make you look like Hillary Clinton. Ask any of the Libbies!

But no one is wrong ALL the time, and on the subject of nuclear waste, some of them here are correct.

I'm a reader ---several hours' worth per day--- And the summation of everything I've read and looked into on the subject has convinced me that energy from the fission of uranium or plutonium is never going to be worth the danger it entails.

There are so many other, safer choices, some of them quite competitive in price to the cost of new fission reactors, that the nuclear option just doesn't make sense, anymore. If we begin to develop them, and update our transmission technology that dates from the beginning of the last century, we might just be able to do without nuclear reactors ---and still not face undue financial hardship.

Is there any overriding reason not to do that? Show me the downside, and I'll gracefully strike my colors.

I still stand by my comments and you're right, people will decide, but my world doesn't turn on what people think of me.

First of all, I have never said I wasn't supportive of cleaner energy. In regard to climate change/global warning, I question the call for drastic measures which are and will continue to be suggested by the scientific community. It doesn't take a genius to surmise that those recommendations will ultimately mean increased taxes and industry regulations.

Tell me this, if after all the suggested measures of mitigating our use of fossil fuels and other sources of CO2, what is the "guarantee" the earth will stop warming? How soon, immediately, 10 years, 100 years?

Dr. Kathryn Hayhoe at Tech is a qualified individual in the sciences I'm sure and she is attempting to synthesize the global warming data with her faith. But the only real difference between us lies in how much I'm willing to trust an omnipotent God with something over which I have very little control.

The Bible predicts the future return of Jesus to claim the earth as the rightful heir and ruler, commonly known as the Millennial Reign of Christ. I understand as a nonbeliever you will either mock this belief or snicker under your breath at the thought of it but I, nevertheless, believe it. If this is to be the case, there must be an earth for Him to return to. I firmly believe God will not allow man to destroy the earth. Actually God will do that. Read Revelation 21.

That being said, I do believe we should take care of and be good stewards of our world in the meantime.

I know there are many who will enjoy mocking me for my faith in the God of the Bible but it's who I am. I hope this gives you a better understanding why I hold the views I do..

Almost certainly you will be mocked for your faith in God ---it's that kind of world--- but you WON'T get that treatment from me. I worship Him too.

I am not personally sure about the current fossil fuel-linked theories of climate change. At this point, I cannot comment at all, one way or the other. One side's scientists are just about as convincing to me as the other's.

However, fossil fuels were not what I was talking about. Specifically, I was talking about the energy from nuclear fission, and the conundrum of exactly what to do with the wastes. I'm perfectly willing to continue the use of fossil fuels ---with some common sense restraints--- while we are developing some of the better choices I've outlined. It's nucear fission reactors that alarm me!

Edited to add: No, God will not allow us to destroy the earth before He is ready for that to happen ---but that doesn't mean we have to do our dead level best to turn it into a poisonous wasteland where nothing will grow!

I agreed with Mr. Pickens about using the cleaner burning natural gas until I realized that to get at that gas, they were going to have to use fracturing (fracking) with toxic chemicals. It seems that "fracking" is used for drilling in general, whether for petroleum OR natural gas.